A President’s Words Matter: Deception of the Public and the Impeachable Offense

In the past week, the president restated his view that assertions of Russian interference in the 2016 presidential election are a “hoax.” He has said this before. In repeating himself on the topic, including at a political rally on Saturday in Alabama, he is doing more than ignoring the evidence that has emerged over the months of Justice Department and congressional investigations, in investigative reporting, and in Facebook’s recent disclosures about Russian-financed campaign advertising. He is denying the evidence. He is saying that beliefs about Russia electioneering are untrue. And he is making a still broader claim: that any claim to the contrary is a hoax—a deliberate deception or fraud.

This is a serious move, not one to be dismissed as mere political positioning. It matters that a president charged with faithfully executing the laws deliberately and continuously misrepresents to the public the grounds for an ongoing criminal investigation. And it is not a course he can pursue without consequences for his personal exposure in the investigation or in an impeachment proceeding.

According to press reports, the special counsel is probing for evidence of obstruction in the firing of James Comey as FBI director and the preparation of Donald Trump Jr.’s false press statement about his meeting in the summer of 2016 with Russians close to the Kremlin who were offering help to the campaign. If there is evidence of obstructive intent, President Trump’s repeated and emphatic public attacks on the investigation cannot fail to fill out to his detriment the picture of a president committed to undermining law enforcement. This is perhaps a risk that the president and his lawyers are prepared to take. They may be gambling that the president’s legal interests are well served in the long run by sowing uncertainty about the validity of the inquiries and the motives of the officials responsible for it. It is a gamble, however, and they could lose as easily as they could win.

Moreover, what Trump says about the investigation could improperly influence its course. Witnesses close to the president have been, or will continue to be, called to give evidence. One of them is his son Donald Jr., who, before the disclosure of a campaign meeting with Russians in June 2016, had followed his father in dismissing as “phony” and “disgusting” suggestions of Russian interference. A president would normally, appropriately and prudently avoid making statements that could affect whether and to what extent witnesses cooperate, or the truthfulness or completeness of their testimony. Yet here the U.S. president proclaims that the mounting evidence of Russian interference is all a mirage and a sham and that the congressional and criminal inquiries are political plays against him.

The public cannot know that these declarations will have any effect on witnesses—family members, friends or close associates—who may weigh their loyalty to the president against their legal obligations or interest in self-preservation. But a president would surely not want any suggestion that he is striving or hoping for that effect.

The public denials are also—and unambiguously—dangerous to the president in any congressional consideration of articles of impeachment. Trump’s lawyers must be aware of the Nixon article of impeachment, approved by the House Judiciary Committee, the relevant part of which focuses on the president’s “false and misleading public statements for the purpose of deceiving the people of the United States.” In other words, a president is responsible for what he says to the public. He is not exempt from close scrutiny of those statements—of his use of words—in a judgment of his fitness to hold office.

In the Nixon case, the misrepresentations concerned the president’s false statements about his ostensible actions to get to the bottom of the scandal and what they revealed. The White House opened the course of deception with the press secretary’s now-famous suggestion that the Watergate break-in was no more than a “third-rate burglary attempt.” Days later, Richard Nixon declared that the White House had “no involvement whatever in this particular incident.” And by the end of August, the president had announced that a “complete investigation” conducted by the White House counsel had found no White House staff involvement “in this very bizarre incident.”

The Nixon impeachment article in question addressed specifically the aspect of the deception that involved misrepresenting to the public that “a thorough and complete investigation had been conducted…and that there was no involvement of [current White House] personnel in such misconduct.” While Trump is not misleading the public about investigative or remedial actions that he directed, his misrepresentations are nonetheless serious. He is falsely disputing the basis for the actions of the responsible law enforcement officials and doing so deliberately. Like Nixon, he is telling the public that there is nothing there and, still worse, that the investigations are part of a hoax perpetrated against the public.

Some Americans may disregard the claims, putting more stock in the intelligence community’s judgments, in Facebook’s recent announcement or responsible reporting. But some may not, or they will have reason to hesitate, encouraged in their uncertainty or skepticism by the president’s attacks on “fake news” and a “rigged system.”

Trump cannot be excused because this is “just politics” and he is a politician entitled to play the game and score political points. He is misrepresenting matters within his knowledge as president. Intelligence officials have briefed him on the Russia activities. He knows they are not a hoax. And his part in drafting the statement for Donald Jr. shows that he has been even more actively engaged in deceiving the public. The systematic, deliberate deception—about the attempt of a foreign government to influence a U.S. presidential election—is an impeachable offense, even if it is likely to be considered, as in the Nixon case, only in combination with other offenses arising out of the Russia investigation and other matters.

If it comes to this, an impeachment of Donald Trump will center on actions that Congress deems “high crimes and misdemeanors,” but, as in the Nixon case, within the overall charge that he failed in his constitutional obligation to take care to “faithfully” execute the law. This obligation at bottom is one of “good faith.” At the least, this is a requirement that the president exercise executive power and discretion within bounds set by respect for law and institutional limits, and that he not sacrifice the public’s welfare in order to serve his own. In Trump’s case, where laws being enforced directly implicate his and family members’ personal and political interests, “faithful execution” would counsel refraining from falsely denying, only to his own advantage, the basis for the Russia inquiry.

And no less relevant to the seriousness required of any impeachable offense, Trump’s false denials undermine public confidence in the legal and legislative processes for addressing a matter of the highest public concern. He is not disputing the basis for an ordinary-course legal investigation. The issue of Russian intervention in a presidential election, and of any potential sway thereby gained by foreign interests over the executive branch, is one of exquisite constitutional sensitivity, directly relevant to Trump’s conduct of his office.

The lawyers around the president, including both personal and government lawyers, cannot conceivably imagine that the president can engage free of risk in this attempted deception. It is reasonable to assume, or to hope, that they counseled to him to stop. He won’t, and one is left to speculate about the reasons. It may be that the president is keeping the foundation laid for firing Robert Mueller, whom he might decide to charge with the leading role in the “hoax.” While at the moment the president’s lawyers profess a commitment to cooperate with the probe, they have also reportedly examined grounds on which Mueller might be terminated. So they may be content to let their client assail the “hoax” and continue feeding doubt about the special counsel’s integrity and mission.

In the event the president does fire Mueller, an impeachment proceeding would become highly likely, and perhaps then the deceptions of the public about Russia will be the least, or only one, of Mr. Trump’s problems. He would be wrong to think that he won’t have to answer for them at all.

Bob Bauer served as White House Counsel to President Obama, and returned to private practice as a partner at Perkins Coie in June 2011. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the Co-Director of the university's Legislative and Regulatory Process Clinic.